Hereditary Succession Generally

552. Preliminary notions. 1. Hereditary succession is the right of succeeding to the goods and rights of some deceased person.

Hereditary succession is twofold: one is legal, or from intestacy, by which the right of succeeding to the goods and rights of the deceased arises from the disposition of law; the other is testamentary, by which the right of succeeding to the goods and rights of the deceased is acquired from the last will of the deceased himself.

Inheritance signifies the universality of the goods and rights of some deceased person.

Heir is said of the person representing the deceased, to whom belongs the right of succeeding to his goods and rights.

An heir can succeed to the goods of the deceased either wholly or in part; the former is an heir to the whole, the latter an heir in part; but each is said to succeed by universal title (n. 403, 3).

The legitimate portion is called that part of the inheritance which must be left to necessary heirs. Its quantity is diverse according to diverse codes.

2. Modes of acquiring an inheritance. The right of inheritance can be acquired in a threefold mode: a. by hereditary pact (Erbvertrag), by which someone confers on another, for example, on a wife, a right of inheritance; b. by testament, by which someone declares whom he wishes to succeed him after death in his goods and rights; c. by succession from intestacy, which happens to children or relatives according to the order established by law, if someone dies without a testamentary disposition.

553. On heirs. A twofold heir is distinguished: an heir from intestacy, who, when no testamentary disposition exists, succeeds to the goods of the deceased from the disposition of law; and an heir from testament, who by force of the testament succeeds to his goods from the will of the deceased.

Some laws, for example Roman and French law, do not admit that an heir be instituted only for part of the goods and the remaining part come to heirs from intestacy; but others, for example Austrian, German, and English law, admit this.

Some heirs from testament are necessary, who by force of positive law must be instituted, except in a few cases in which they can be deprived of inheritance;¹ others are arbitrary, who can be instituted heirs, but by force of law do not have to be instituted.

Necessary heirs are diverse in diverse laws, generally only legitimate descendants, sometimes also the wife.²

Some heirs are legitimate, who from law have the right of succeeding him who did not institute an heir but died intestate; others are extraneous, who do not have this right.

Therefore necessary heirs are also legitimate; but not all legitimate heirs are also necessary; but extraneous heirs are neither legitimate nor necessary.

¹ Cf. C.A. Section 768 ss.; C.G. Section 2339, in which causes are enumerated on account of which someone can be deprived of inheritance.

² C.A. Sections 765, 766; C.G. Section 2303 ss.

554. On the right of succeeding. By natural law there belongs to descendants the right of succeeding to the goods of the deceased, unless they have been legitimately excluded; therefore Sacred Scripture, from the persuasion of all nations, calls a son by that very fact also an heir: But if a son, also an heir.¹

a. The several families out of which civil society comes together, by the disposition of nature itself, are conserved and propagated through an indefinite series of generations; but the conservation and propagation of families would be impossible unless the goods of the family, at least as to the greatest part, were transmitted from one generation to another, and did not either become the property of the first occupier or be occupied by political power; therefore, nature itself demanding it, descendants succeed to the proper goods of the family.² Therefore all civil laws establish that members of a family succeed to the goods of a deceased person who died without a testament, and authors almost concede that this is demanded by natural law.

b. Therefore the same reason by which the necessity of private property is constructed also proves that children of the family by natural law succeed to the goods of their parents. Yet since by natural law only the right of succeeding is certain, it pertains to civil authority to determine more accurately those things which are indeterminate from natural law, for example, to establish the mode of succession, the quantity of the inheritance, the degree of kinship beyond which the family is considered extinct and therefore the goods of the deceased are no longer devolved to descendants, etc.

¹ Gal. 4:7.

² Cf. Theod. Meyer, Die Arbeiterfrage etc.^3 (Freiburg: Herder, 1895), who in chapter 8, Das Erbrecht und die Familie, developed this argument diffusely and learnedly. The same author, Institutiones iuris naturalis (Freiburg: Herder, 1900), II, n. 203 ss.; Carriere, l.c., II, n. 502 ss.

555. On acceptance of the inheritance and the obligation of the heir. 1. When the testator has died, the heir does not yet acquire the inheritance, but his acceptance is still required for acquiring it; nor is he bound to accept the inheritance, but he can also repudiate it.

2. An inheritance can be accepted in a twofold mode: purely and simply, or under benefit of inventory (mit Vorbehalt der Rechtswohltat des Inventars).

He who accepts the inheritance in the former mode must pay by law all debts and legacies of the deceased; he who accepts the inheritance in the latter mode is not bound to pay the debts and legacies of the deceased beyond the powers of the inheritance.

a. Whether he who accepted it simply, without inventory, is bound in conscience to pay the debts and legacies of the deceased even beyond the powers of the inheritance is disputed. The opinion which denies that the heir is bound beyond the powers of the inheritance, not even after the sentence of the judge, is probable. Practically therefore the heir cannot be obligated in conscience to pay debts and legacies which exceed the inheritance; yet since this opinion is not certain, creditors and legatees are not prohibited from petitioning payment and retaining what has been paid.

b. In order that the reason of the controversy may appear, it must be noted that here there is question of a law which is founded on a presumption: for the law presumes that the heir who entered upon the inheritance without inventory accepted more goods than are required for satisfying debts. Now whether a law which is founded on a false presumption obliges in conscience depends on whether the false presumption is a presumption of fact or of law. Those who in our case release the heir from paying debts contend that the law is founded on a false presumption of fact, namely that the goods accepted in the inheritance in reality exceed the debts to be paid; but those who obligate the heir to paying debts judge that the law is founded on a presumption of law, namely on the common danger of deceit and fraud.¹

3. He who accepts an inheritance by that very fact assumes both the goods and rights and also the real burdens and debts of the deceased, provided they do not exceed the powers of the inheritance; but the personal rights and burdens of the deceased are extinguished with him.

Hence the heir is bound: a. to fulfill as soon as possible both pious and profane legacies; b. to pay the debts of the deceased as soon as possible. But if there are several heirs, each one is bound for that part which he accepted in the inheritance; wherefore if one afterward becomes unable to pay, the others are not obligated.

¹ Cf. Bucceroni, Casus consc.^4, n. 17, 1.

Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child’s property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child’s minority, if no trustee or guardian of his property has been appointed, the father or mother will usually be appointed guardian, and in that capacity they are bound to administer the property for the benefit of the child, nor may they use it for their own profit.

On the other hand, English law gives no right to children to share in their father’s property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. As to entailed property, a tenant in tail in possession may now under the Law of Property Act, 1925, in certain circumstances bar an entail and dispose of it as a fee simple, not only by deed but by will.

When an intestate, whether husband or wife, leaves a surviving spouse and issue, the survivor of husband or wife takes (a) personal chattels absolutely; (b) £1,000 net free of Death Duties and costs, with 5 per cent. interest thereon from death till payment or appropriation; (c) a life interest in half of the rest of the intestate’s estate. Subject thereto the property is held on the statutory trusts for the issue.

If the intestate die leaving no husband or wife surviving, but only issue, then the issue take the whole of the estate on the statutory trusts. These statutory trusts provide for equal division of the estate per stirpes.

I. Notion. Hereditary succession is a mode of acquiring the strict rights of some deceased person, by way of succession into them.

II. Division. Hereditary succession is distinguished as twofold: testamentary and legal. It is testamentary when someone is constituted heir by the deceased himself, namely through a testament. It is legal, or ab intestato, when someone is called to the inheritance by law, no testament having been made, or the testament being void, or made void.

Note. Anyone who succeeds to some good of the deceased can be called an heir; but, with laws considered, he is called an heir who, whether from testament or from law, acquires either the whole inheritance or some quota part of the inheritance, for example half or a third. An heir is said to succeed to the deceased by universal title. A legatee is called one who from a testament receives some particular thing or things, or all things of a certain species, for example a sum of money, a house, all movable goods, all immovable goods, the usufruct of all goods, and so forth.

Heirs are distinguished as legal and testamentary, according as they receive goods by force of law or by force of testament; necessary and voluntary, according as they cannot or can be excluded from the testament by the testator.

III. Origin of hereditary succession; concerning this we establish two things, of which one regards children, and the other is more universal.

1. The succession of children into the goods of deceased parents is of natural law. The reason is that private ownership was instituted not only for the good of the individual, but also and no less for the good of the family; in other words, it was instituted so that a man might provide for himself and for his family (n. 762). But that end is not fully obtained if children do not succeed into the goods of deceased parents.

St. Thomas says thus: "It must be said that marriage from the intention of nature is ordered to the education of offspring, not only for some time, but for the whole life of the offspring; hence it is of natural law that parents lay up treasure for children, and that children be heirs of their parents" (IV Sent., dist. 33, q. 2).¹

Corollary I. When no testament has been made, children by force of natural law are the heirs of their parents; in other words, children by force of natural law succeed ab intestato.

Corollary II. Parents per se cannot disinherit children; nevertheless they are not bound to leave all goods to them, for the good of the family per se does not require this.

2. Testamentary succession is a mode of acquiring ownership; in other words, the owner of goods can transfer ownership of them to another by testament. This is clear first from these words of Sacred Scripture, which manifestly suppose the faculty of making a testament: "For where there is a testament, the death of the testator must of necessity come in. For a testament is confirmed among the dead: otherwise it is not yet of force, while he who made the testament lives."² Then it is deduced from the notion of ownership, which imports the faculty of disposing of a thing for as long as someone is its owner. But the testator disposes of his own thing while he still enjoys ownership, namely at the departure of life. Nor should it be objected that the union of wills is lacking, namely of the one testating and the one accepting, because the testator at the time of acceptance is already dead; since the will of the testator juridically persists in the disposition itself that has been made, just as the will of the legislator persists in legislation that has been enacted, even if he has died or has been deprived of power.³

3. Although both the succession of children into the goods of parents, and the faculty of disposing of one's own things by testament, are of natural law, nevertheless, on account of the common good, they can be more determined by positive laws, circumscribed by certain limits, and subjected to certain norms, and indeed in such a way that, if the norms have not been observed, the disposition made is invalid (n. 764).

¹ Leo XIII in the encyclical Rerum novarum, May 15, 1891, says thus: "It is a most sacred law of nature that the father of a family should protect, with food and every provision, those whom he has begotten; and he is led to this by nature itself, that he should wish to acquire and prepare for his children, since they represent and in a certain way continue the father's person, that by which they may honorably defend themselves from miserable fortune in the uncertain course of life."

² Heb. 9:16-17.

³ Pius XI in the encyclical Quadragesimo anno, May 15, 1931, says thus: "Always... the natural right itself... of transmitting goods by inheritance must remain intact and inviolate, since the State cannot take it away."

IV. Subject of hereditary succession. All human beings can be heirs who are not excluded by law, even infants and the perpetually insane (n. 757). Who are excluded, see in the code of one's country.

V. Use of hereditary succession. Each person can either accept or repudiate an inheritance; if there are several heirs, one can accept it and another repudiate it. It can be accepted either simply or under the benefit of inventory, as it is called.

VI. Effects of an accepted inheritance. 1. The effect of simple acceptance is that the heir, on the one hand, acquires all the rights of the deceased, and, on the other hand, is bound to pay his debts insofar as the resources of the inheritance permit this. If there are several heirs, each is bound to pay debts for his proportionate part, but not beyond the part which he has received. If one fails, another must supply, insofar as the part received by him permits this. Thus, abstraction being made from civil law, which is accustomed to modify the aforesaid things (St. Alphonsus, III, 790). Hence:

Question 1. Whether the disposition of law, if it exists, has force in conscience, by which individual heirs are bound only for a proportionate part to pay debts and legacies, so that if one fails another is not bound to supply.

Response. Affirmatively; since the law, as one which justly divides burdens among the heirs, is altogether just. Moreover, laws establishing this commonly leave to creditors, who suffer damage from that disposition of law, other means of providing for themselves, for example by requiring payment of the debt before the division of the inheritance, etc.; concerning this, consult the civil code (St. Alphonsus, III, 790).

Question 2. Whether the disposition of law, if it exists, has force in conscience, by which an heir who has accepted an inheritance simply is bound to pay beyond the resources of the inheritance.

Response. It seems one must answer affirmatively, because the law seems to rest upon the danger that heirs might fraudulently conceal goods; and a law of this kind obliges even if in a particular case the danger is absent (n. 152). Many indeed teach the contrary and judge that the law rests upon a presumption of fact, either of fraud committed, or of the heir's intention to hold as ratified all debts contracted by the deceased and all legacies imposed by him. But the legislator must not be judged to presume what is undeservedly presumed. There are also some who hold the disposition of the law as a penalty for the neglect of the benefit of inventory; if this is admitted, the obligation is not had except after the sentence of a judge. But there can be no discussion of a penalty, since the law leaves to the heir full liberty of accepting the inheritance without the benefit of inventory.

2. The effect of acceptance under the benefit of inventory is that the heir is not bound beyond the resources of the inheritance to pay the debts, legacies, and burdens incumbent upon the inheritance. Other effects also are commonly established by civil law.

3. The effect of any acceptance, with civil law considered, is customarily collation, as it is called; that is, the obligation by which heirs are bound, for the favor of co-heirs, to bring back into the inheritance to be divided the donations inter vivos which they received from the deceased. Concerning this obligation consult the law of one's country and its approved interpretation.

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

What is reduction? Reduction is: the rescission of a donation or legacy in proportion to the excess above the disposable quantity, which rescission must indeed be made by public authority. The reason is that the legitime should not be injured contrary to right. Rescission, and therefore the act, is valid, and one can retain what he has received if reduction is not demanded. But it cannot be requested except by those for whom the law reserves the legitime. Nor indeed can they, during the life of the donor, renounce this right. If the value of the donations exceeds or equals the disposable quota, the testamentary dispositions are without effect. But if the testamentary dispositions exceed the disposable quota or the portion of this quota which would remain after deducting the value of the donations, reduction is made proportionately without any distinction between heirs and legatees. Meanwhile the donee makes the fruits of the donated thing his own during the life of the donor. Manual gifts also are to be reduced, provided they are immoderate, so that excessive inequality among the children would be had thence. Immoderate, lest parents be dealt with as though they were managers of the affairs of the children. Immoderate, with attention to the conditions of the amount of the patrimony, the person giving, the cause of giving, etc. Therefore provision is made for the legitime of children by computing into the inheritance left at the time of death the things which the deceased, while living, had previously donated to outsiders: namely, for the determination at that time of the legitimate and disposable part; for the legitime is owed only from that time of death. Hence one mass, as it were, is formed from those things which the testator left when dying and from those things which he donated while living, so that the legitime may be taken from this mass. But also the debt which perhaps the testator left must be deducted. It is deducted, however, not from the donated things, but from the things left. For the things donated, since they had already been alienated by the testator, are not obligated to creditors. According to C. He. 527, alienations made by the disposer with the manifest intention of eluding the dispositions concerning the legitime are subject to reduction. - Cf. here n. 673; C. I. 821-824, 1091 ff.; C. G. 920 ff.; C. H. 654 ff., 887, 818 ff., 1036, 1039, 1040, 1044; C. L. 1482, 1493 ff.; C. He. 474 ff., 486, 522 ff.; C. A. 951, 952; L. 740.

What, according to positive law, is the reservation or legitime owed to necessary heirs? According to Roman Law: 1. As regards ascendants, the triens, that is, the third part of the as or inheritance, is reserved when descendants are lacking. - 2. As regards legitimate children, the triens, if there are not more than four children; and the semissis, or half part, if there are more. 3. As regards natural children, they succeed to the mother by equal right with legitimate children. But they do not succeed to the father having legitimate children, although they can receive from him a twelfth part of the inheritance. But if the father lacks legitimate children, he can institute natural children as heirs, provided surviving parents are not deprived of their legitimate portion; and when these are lacking, natural children can succeed to all the father's goods. - Nov. 118; L. 947-901. According to C. G. 913-915, whether for testament or for donation inter vivos: 1. As regards the reservation owed to legitimate children, if there is one, the semis, or half part of the goods, is reserved; if two, the bes, or two thirds; if three or more, the dodrans, or three quarters. But under the name of child, his descendants who represent him are comprehended. - It does not seem that the part which would pertain to a legally recognized illegitimate child ab intestato can be taken away from him by testament. Cf. n. 1047. 2. As regards the reservation owed to ascendants, if legitimate children are present, they have no right; when children are lacking, ascendants have a right to the legitime, so that this portion is the semis or half part if they survive from each line; but the quadrans, or fourth part, if they survive only from one. 3. A wife does not come among necessary heirs, nor legitimate heirs ab intestato, unless the other legitimate heirs within the degrees established by law are lacking. Thus according to each Law, namely Roman and French. Nevertheless by natural law a testator must assign some part to the surviving spouse, if she does not have sufficient goods of her own, on account of the most close necessity between husband and wife.

According to C. I. 744, 805, 807, 808-810, 812-816, 818, 819: 1. The legitimate portion of legitimate children is half of the goods, whatever the number and sex of the children may be. But under the name of children are comprehended legitimate, legitimated, and adoptive children, and their descendants. 2. To illegitimate children duly acknowledged, if children or ascendants exist, there is owed half of the quota part which would have fallen to them if they had been legitimate, the legitimate children being computed together with them. But if descendants and ascendants are lacking, two thirds of the aforesaid quota are owed to them. Yet this portion which is owed to illegitimate children can be furnished in hereditary goods or in counted money; and it does not diminish the legitime of legitimate descendants or ascendants, since it must be deducted from the disposable portion. 3. The legitimate portion of ascendants, when descendants are lacking, is a third part, divisible between father and mother, and, if either of them is lacking, to be conferred on the survivor; if both are lacking, to be divided between ascendants of the paternal line and of the maternal line, provided they are of the same degree; otherwise to be conferred upon the nearer persons of either line. 4. The spouse has a right in the inheritance of the deceased spouse to the usufruct of a certain portion, greater or lesser, according as the deceased has left either descendants, or ascendants alone, or neither. But this portion is deducted from the disposable portion, and can be given by a certain part of the revenues, or by annual prestations. Note: 1. If the testator assigns to someone a usufruct or life annuity which exceeds the annual revenue of the portion of which he was able to dispose, then the legitimaries are given the option either of executing what was prescribed by the testator, or of renouncing for themselves the portion of which he was able to dispose. C. I. 810. - 2. The surviving spouse, and one not previously personally separated by a sentence which has passed into judgment, has the right of usufruct in that part of the inheritance which equals the part pertaining to each legitimate child, under the title of legitime, counting the spouse himself together with the children. C. I. 812. If the testator does not leave descendants but only ascendants, the portion of usufruct will be the fourth part of the inheritance. C. I. 813. - But if the testator leaves neither descendants nor ascendants who have a right to the legitime, the portion of usufruct will be a third part of the goods. C. I. 814. The testator can indeed be more abundant toward the surviving spouse as regards the disposable part. Yet, if children from another marriage survive the testator himself, then he cannot leave to the second spouse more than that which he left to the least regarded child of the prior marriage. 3. Both the spouse and the natural child must impute to their respective quota, the former all things which came to him from matrimonial agreements, and the latter everything which he received from the testator while living, if it is subject to collation. C. I. 820. 4. Natural children, legitimate children being lacking, can be instituted for the whole as, the legitime owed to ascendants being preserved. C. I. 724, 745, 764; C. G. 723.

According to C. H. 808, 809, 834 ff., 840 ff., the legitime reserved for children and legitimate descendants is contained in two thirds of the hereditary patrimony of the father and mother. Nevertheless they themselves can dispose of one of these two parts, under the title of betterment, so that they may apply it to children and legitimate descendants. Of the remaining third part of the goods they can freely dispose. - The legitime of parents and ascendants, in defect of the preceding, is constituted by half of the hereditary goods. The disposition of the other half part remains free. To the widowed spouse, not separated by divorce, or without his fault, a certain part as to usufruct is reserved, which varies according to various circumstances. To natural children also legally recognized a certain part is reserved; but to illegitimate children who are not natural, only support.

According to C. L. 1784 ff., the legitime is contained in two thirds of the goods of the testator. According to C. A. 161, 162, 865, 766, 796, the legitimate portion reserved to children is half the part of the goods which would fall to them in succession ab intestato. But the legitimate portion of each necessary heir in the ascending line is a third part of the goods which would come to him in succession ab intestato. Legitimated natural children are counted among legitimate children. No legitime is owed to the spouse, but only suitable support. Cf. as regards the spouse, aa. 1242 ff. According to C. B. 2303 ff. and C. He. 470, 471, reservation of goods is had for descendants, for father and mother, for the spouse; and according to C. He. l.c., also for brothers or sisters.

According to C. He. 633, adult children who live together with their parents and have contributed work and profit into the domestic community of the parents can claim equitable compensation in the division of their inheritance, insofar as they have not expressly renounced it.

Who are legitimate heirs; what is their succession?

Legitimate heirs generally are those who are called to succession according to the disposition of the law, when the disposition of the deceased is lacking, either because he made no testament, or because he made an invalid testament, or because the instituted heir cannot or will not enter upon the inheritance. Moreover the law, by prerogative of order and degree, calls blood relatives to succession: descendants, ascendants, collaterals, the spouse, and, when these are lacking, the State. This is the order: Succession is deferred: 1. To descendants indefinitely. When these are lacking: 2. To ascendants, brothers, and their descendants, but not beyond the tenth degree, and to the spouse. When these also are lacking: 3. To other collaterals of the later order, i.e., paternal uncles, maternal uncles, paternal aunts, maternal aunts; and, when these are lacking, to their children, paternal cousins, maternal cousins, cousins through paternal aunts; and when these are lacking, to those who next descend from them, up to the tenth degree. This is the prerogative of order: legitimate descendants exclude all others, except duly acknowledged illegitimate children. C. I. 736. These illegitimate children exclude all collaterals. C. I. 743, 745. Ascendants and Brothers exclude collaterals of the later order. The spouse excludes all collaterals, whether of the prior or later order, but only after the sixth degree. C. I. 742, 755. This is the prerogative of degree: nearer persons of the same order exclude more remote persons in the same order. C. I. 720-724; C. G. 723, 725 ff., 731 ff.; C. H. 912-914; C. A. 727 ff.; C. L. 1969 ff.

1. Succession of descendants. Legitimate heirs in particular are, in the first place according to C. I. 736; C. G. 745, legitimate children, or their descendants, without distinction of primogeniture or sex, although born from different marriages. They succeed in equal portions and by heads if they are in the first degree and are called by reason of themselves. They succeed by stocks if they are called by right of representation. But the descendants of the deceased exclude the others from succession. According to C. I. 737, under the name of legitimate children are also comprehended legitimated and adoptive children, and their descendants. Adopted persons and their descendants indeed succeed to the adopter, but they are excluded from the succession of all relatives of the adopter. - But the inheritance of the adopted person does not pertain to the adoptive parents; and accordingly it returns to his own blood relatives. C. I. 210, 212, 737. Almost the same are the dispositions of C. A. 730-734; C. H. 930-934; C. He. 457 ff.; C. L. 1985 ff.

2. Succession of ascendants. When descendants are lacking, and likewise when brothers or sisters and their descendants are lacking, ascendants succeed, namely according to C. I. 738, 739, father and mother in equal portions, or, if either has died, the survivor alone. And when descendants, parents, brothers or sisters, and their descendants are lacking, ascendants of the paternal line succeed in half part of the goods, and ascendants of the maternal line in the other half part. If nevertheless ascendants are not in equal degree, the inheritance pertains to the nearer one.

If they concur with collaterals, according to C. I. 740, in no case can the portion of the parents be less than the triens, or third part. The remainder is divided among the brothers or sisters according to their number in equal portions. But consanguine or uterine brothers or sisters, whether they concur with full siblings or are alone, obtain half of the portion which pertains to full siblings. If they concur with the spouse, according to C. I. 754 they take the bes, or two thirds. According to C. G. 746, 747, when descendants are lacking, and likewise brothers or sisters and their descendants, the nearer ascendant from the paternal line and the nearer ascendant from the maternal line each receive a half part of the goods, the others being excluded. Ascendants, the other legitimate heirs being excluded, succeed to their descendants who have died without posterity, in those goods which they gave to those descendants, or in their price, if these have been alienated. If the deceased without offspring left both parents and brothers or sisters, or their descendants, according to C. G. 748, 751, 752, half of the inheritance must be divided between father and mother; the other half must be divided equally between brothers and sisters, if they were born from the same bed; otherwise if they were born from a different bed. But if only one of the parents survives, the portion of the brothers, sisters, or their descendants is the dodrans, or three fourths; only the fourth part is left to the surviving parent. The dispositions of C. A. you have in aa. 735 ff., and of C. L. 1493, 1996 ff. When descendants are lacking, if both parents are still living, the whole inheritance belongs to them in equal portions. According to C. He. 458, when descendants are lacking, the inheritance is devolved upon the parents of the stock of the parents. Father and mother succeed in equal portions. According to C. H. 935-938, in defect of descendants, ascendants exclude collaterals. Parents divide the inheritance between themselves in equal parts; and if only one survives, he receives all. - Grandfathers divide the inheritance equally between themselves if they are of the same line; or they divide it equally with others if they are of different lines, yet in such a way that half part yields to one line, the other half part to the other line.

3. Succession of collaterals. If someone dies without offspring and without parents, then his brothers and sisters, or their descendants, are called to succession, the rest being excluded. C. G. 750; C. I. 741. - According to C. I. art. cit. 741, consanguine and uterine brothers and sisters, concurring with full siblings, obtain half of the portion which pertains to full siblings. - If they concur with the spouse, they receive the bes, or two thirds. C. I. 754. - If they concur with ascendants, the triens being left to the parents, they themselves take the remainder in equal portions. C. I. 740. - But if they concur with spouse and ascendants, they take the triens, or third part. C. I. 740, 754. If someone dies without offspring, and without brothers and sisters and their descendants, and without ascendants of either line, half of the inheritance is deferred to the surviving ascendants, the other half to the nearer relatives of the other line; if nevertheless among the surviving ascendants there is father or mother, these have a right to the usufruct of the triens of the goods in which they do not succeed. C. G. 753, 754. - According to C. I. 742, 755, if someone leaves neither offspring, nor parents, nor other ascendants, nor brothers or sisters, the succession is deferred to the nearer relative or relatives without distinction of paternal or maternal line. But if a spouse is present, then two thirds fall to this spouse, and a triens to them. Relatives beyond the twelfth degree, namely the sixth according to canonical computation, do not succeed according to C. G. 755. When relatives are lacking in some line within the aforesaid degree, the whole inheritance pertains to the relatives of the other line. According to C. I. 742, succession is not extended beyond the tenth degree, namely the fifth according to canonical computation. So also according to Roman Law. The dispositions of C. A. you have in aa. 735 ff. When parents are lacking, the whole inheritance is divided between brothers and sisters in equal portions. But as regards other blood relatives, succession is not extended beyond the sixth line of consanguinity, namely the fifth degree according to Canon Law. According to C. He. 459, 460, in defect of descendants and heirs of the stock of the parents, the inheritance is devolved upon parents of the stock of grandparents. Grandfathers and grandmothers of the paternal and maternal line, if they live, succeed in every line in equal portions. If a grandfather and grandmother have died before, they are represented by their descendants, who succeed by stock in each degree. If a grandfather or grandmother of the paternal line or of the maternal line has died before, without his or her own descendants, the whole half part is devolved upon other heirs of the same line. If there are no heirs of the paternal or maternal line, the whole inheritance is devolved upon heirs of the other line. - With the stock of grandparents the succession of blood relatives of the parents ceases; nevertheless the usufruct is reserved to great-grandparents of the part devolved upon the descendants of their stock, if they were living, and great-uncles and great-aunts have this usufruct in representation of the great-grandparents who died before, from whom they descend, as long as they live. According to C. H. 921-927, 940-955, when descendants, ascendants, and legally recognized natural children are lacking, brothers succeed to the inheritance in equal parts. When brothers are lacking, the spouse succeeds to the whole inheritance. If there are brothers and spouse together, the spouse receives the usufruct of the part determined by law. But if brothers and spouse are lacking, other collaterals succeed up to the sixth degree by civil computation. Cf. aa. 918, 919. The nearer blood relative excludes the more remote, with the right of representation preserved, a. 921. According to C. L. 2000 ff., when descendants and ascendants are lacking, the heirs are brothers and their descendants.

4. Succession of natural children. Natural children, legally recognized, when natural and legitimate children exist, according to C. G. 723, 757, 758, have a right to the third part of the portion which they would have obtained if they had been natural and legitimate; to half of that portion, if there are no legitimate descendants and there are ascendants, or brothers or sisters; to the dodrans, if all these are lacking; and if moreover there is no relative who enjoys the right of succession, the whole inheritance pertains to them.

According to C. I. 744, 745, 746, 747, 749, natural children, legally recognized, when legitimate descendants exist, have a right to half of the portion which they would receive if they were legitimate. Natural children must furthermore impute into that portion whatever they may have received from the parent or parents, subject to collation, even if they have been dispensed from collation. - If the parent dies without legitimate offspring and their descendants, but leaves his parents, or one of them, or another ascendant, or a spouse, natural children succeed in two thirds of the inheritance; the remainder is deferred to the ascendants or spouse. - But if ascendants and spouse are present together, a third part of the inheritance pertains to the ascendants, a fourth to the spouse, and the remainder to the natural children. - If there are no legitimate descendants and ascendants nor spouse, the whole inheritance is devolved upon the natural children; but they have no right in the goods of relatives of the father or mother, just as those relatives have none in the goods of natural children. - According to C. I. 180, 752; C. G. 262, children born from adultery or incest are altogether excluded from succession, and have only a right to support, namely if the testator acknowledged them or if by the sentence of a judge they are established as such. Support is certainly owed to children by the law of nature. Hence they can never be deprived of it by the father. Struggl. tr. 7. q. 2. n. 15; L. 949, 951. If a natural child has neither descendants nor spouse, his inheritance is devolved upon the father and mother who acknowledged him, or upon only one of them, if only one acknowledged him. But if he leaves a surviving spouse, half part of the inheritance belongs to the spouse himself, and the other half to father and mother, or to only one of them, as was just said. C. I. 750, 751. - C. L. 1994, 1995. According to C. A. 752, 753, 756, legitimated natural children have the same rights as legitimate children. But illegitimate children also have the same rights as legitimate children in the succession ab intestato of the mother. They do not have a right in the succession ab intestato of the father. But in the succession of legitimated and illegitimate children, their parents reciprocally have the same right as they do as regards the inheritance of their own parents. - According to C. He. 461, natural blood parents have in the maternal kinship the same rights as legitimate persons. In the paternal kinship they are heirs only insofar as the natural child follows the status of the father by recognition or sentence of a judge. In concurrence with legitimate descendants of the father, the natural heir or his descendants obtain half of the part which the legitimate children and their descendants receive. According to C. H. 939-945, when descendants and ascendants are lacking, the inheritance is divided among legally recognized natural children. But if descendants or ascendants are present, they receive only the portion determined by the laws. But if they themselves die without legitimate posterity, their parents succeed to them. C. L. 1989 ff.

5. Succession of the spouse. According to C. G. 767, when all relatives are lacking within the twelfth degree, the spouse is called to succession, provided there was no divorce between them. According to C. I. 156, 158, 753-757, if legitimate children survive the deceased spouse, the surviving spouse, who had not been legally separated from the deceased spouse, succeeds to him in an equal part, the spouse being counted in the number of the children, as regards usufruct. If recognized natural children also concur with legitimate children, the usufruct of the spouse must be equal to the quota of the inheritance which pertains to the legitimate children. This portion of usufruct can never be greater than a fourth part. If legitimate offspring are lacking, if there are ascendants, or natural children, or brothers and sisters and their descendants, a triens of the inheritance in ownership is deferred to the surviving spouse; but if legitimate ascendants and natural children are present together, only a quadrans. If the deceased has left other relatives who have the right of succeeding, the surviving spouse obtains two trientes. If there are no relatives who have the right of succession within the sixth degree, the whole inheritance pertains to the surviving spouse. Moreover, whenever the spouse is called to succession with other heirs, he must compute in his hereditary portion whatever he has already obtained on account of matrimonial agreements and dotal gains. - If the spouse has been legally separated from the deceased spouse, then no right belongs to him. When separation is made by mutual consent, even before a tribunal and homologated, it is not regarded as made legally, and therefore does not prejudice the mutual rights of the spouses. The sentence must have been issued before the opening of the succession. But its effects obtain only against the spouse who is at fault, who also loses dotal gains and all useful things granted to him by the other spouse in the marriage contract, and likewise the legal usufruct. Nevertheless the spouses can by mutual consent render void the effects of judicial separation, either expressly or tacitly, by still living together peacefully, without authority intervening. According to C. A. 757 ff., to the surviving spouse, if there are children, there belongs a determined usufruct of a certain portion according to the number of children; if children are lacking, but there is another legitimate heir, a fourth part of the inheritance belongs to him. But if there is no other legitimate heir, the whole inheritance pertains to him. According to C. He. 462, when the deceased has left descendants, the spouse obtains, at his own choice, either half part of the succession in usufruct, or a fourth part in ownership. Concurring with heirs of the stock of the parents, he has a fourth part in ownership and three fourths in usufruct. Concurring with heirs of the stock of grandparents, he receives half part in ownership and the other half in usufruct. If heirs of one and the other stock are lacking, he receives the whole succession in ownership. As regards C. H., cf. what was said in the Succession of collaterals. According to C. L. 2003 ff., when descendants, ascendants, and brothers and their descendants are lacking, the spouse succeeds. When the aforementioned blood relatives and spouse are lacking, other transverse blood relatives succeed within the tenth degree.

Succession of the State. When all who have the right of succeeding are lacking, the inheritance is devolved upon the State. C. I. 758; C. G. 768; C. A. 760; C. H. 956-958; C. He. 466; C. L. 206 ff. C. B. 1924 ff. establishes five orders of successions. Blood relatives of the preceding order exclude blood relatives of the following orders, 1930. Representation is admitted only in the first three orders, 1924, 1925, 1926. In the fourth order the nearer blood relative excludes the rest, 1928. In the first order are the descendants of the deceased. Nearer descendants exclude descendants who are blood relatives of the deceased through their mediation. Children succeed in equal portions, 1924. In the second order are the father and mother of the deceased, and their descendants. Father and mother, if they are living, succeed alone in equal portions, 1925. In the third order are the grandfathers and grandmothers of the deceased and their descendants. If they themselves are still living, they alone succeed in equal portions, 1926. - In the fourth order are the great-grandfathers and great-grandmothers of the deceased and their descendants. If all the great-grandfathers and great-grandmothers are living, they alone succeed; if several, they succeed in equal parts. But if all have died, their descendant nearer in blood relationship succeeds to the deceased; and, if several are in the same degree, they succeed in equal parts, 1928. - In the fifth order succeed great-great-grandfathers and great-great-grandmothers and their descendants, 1929. A portion of goods is always reserved to the surviving spouse, varying according to the various blood relatives with whom he concurs, 1931 ff. - When blood relatives and spouse are lacking, the fisc succeeds, 1936.

By Canon Law, to clerics, as regards superfluous ecclesiastical goods left behind, there succeeds at present the Congregation of Spolia, unless a special Indult is present; as regards other goods, blood relatives succeed according to civil law, and when these are lacking, there succeeds either the Congregation of Spolia, or now the Congregation de Propaganda Fide for the support of missions, or, where this has not been received, the episcopal fisc, with the burden of expending them on pious causes. Reiff. h. t. n. 63. - Solemnly professed religious perpetually secularized cannot make a testament. The Congregation of Spolia succeeds to them, according to the Constitution of Gregory XIII Officii nostri, or now the Congregation de Propaganda Fide. But if they are secularized for a time, the right of succeeding to their inheritance pertains to their monastery, unless this is prohibited by the Constitutions of the Order. The goods of solemnly professed religious, if before profession they did not dispose of them, are devolved to the natural heirs if their religion is incapable of succession; but if it is capable of succession, they are devolved to the monastery. But all monasteries of regulars have the right of succeeding, except houses and Colleges of the Society of Jesus, and monasteries of the Friars Minor of the observance and of the Capuchins. Schmalzgr. 1. 3. p. 3. tit. 27. n. 67 ff.; Giraldi in 4. t. According to C. A. 761, the goods of a cleric ab intestato are divided in equal proportions among the church, the poor, and blood relatives. When a Bishop dies, there are owed to the Cathedral Church the sacred utensils enumerated in the Constitution of Pius IX Quum illud, June 1, 1847, which are not positively established either to have been donated to the Church or to have been acquired with the goods of the Church. And therefore Bishops are bound to make an inventory of these utensils and to declare whether they were acquired with their own expenses or with the goods of the Church. Cardinals Bishops are held to this same obligation, except suburbicarian Cardinals and Abbots nullius residing in the Roman curia. All their utensils, with whatever goods they were acquired, pertain to the pontifical sacristy. Relics of the Holy Cross are to be transmitted to their successors. - E. M. 1037, 1038, 1047. But if Bishops have governed several Churches, the sacred utensils destined for divine worship are to be divided among the several churches in which they resided, according to the norm of the same Constitution. - C. 1, 2 de Success. ab intest.

What is a lying inheritance? - When the heir is not known, or those who are known have renounced the inheritance, the inheritance is called lying. To administer it a curator is appointed, who is obliged to all those things to which an heir with benefit of inventory is held. If after thirty years no one appears, it, as vacant, is prescribed to the fisc. C. I. 980, 983, 2135; Cod. proc. civ. 896; C. G. 811, 814.

When, where, and how is the opening of inheritance had? Succession is opened, whether ab intestato or testamentary, at the very moment of the death of the testator, in the place of his last domicile, and immediate possession passes by full right to the heir, if he is capable. C. I. 923, 925; by full right, and accordingly without another juridical act, without any sentence of a judge. - If among two or more called to succession there is doubt which one died first, suppose in a common shipwreck, if this cannot be verified, all are supposed to have died at one point of time, and therefore there is no place for transmission of inheritance from one to another. C. I. 924; C. A. 25; C. B. 20; C. L. 1738. It is otherwise according to C. G. 720 ff. and L. 22, 23 de Reb. dub. Dig.

What of accepting or repudiating an inheritance? - For accepting or repudiating an inheritance it is required first that it has been deferred, for of a living person there is no inheritance, and therefore there can be no acceptance or repudiation of it. C. I. 954; C. G. 791; C. H. 991.

Moreover it is required that he who accepts or repudiates it be capable of contracting obligation and of alienating. For, by accepting it, he as it were contracts with the hereditary creditors and legatees. But by repudiating it, he alienates the same. Hence a family council, guardian, or curator is needed for those who are under guardianship and curatorship. C. I. 226, 296, 930, 931, 932; C. G. 776; and according to C. G. and C. H., for wives the consent of the husband is also needed. C. H. 992-996. It is open to each person to accept or repudiate an inheritance, whether testamentary or legitimate. C. G. 775; C. H. 988; C. He. 566. The reason is that no one is bound to accept a benefit which is often burdened with great obligations. Nevertheless renunciation is not presumed, but must be proved, and must be made in juridical form. One will be able to repudiate if he has not previously taken away or concealed anything from it. C. I. 953; C. G. 792; C. H. 1002; C. He. 571. According to the same C. He. 566, repudiation of an inheritance is presumed when it would be notorious or would be established from official acts that the debts of the deceased are insoluble. Once the inheritance has been repudiated, the part of the repudiating person accrues to the other written coheirs, if they were instituted jointly; otherwise to the legitimate heirs; and if he himself alone had been instituted, it is deferred to the following degrees. C. I. 946, 948; C. G. 786. And, after repudiating the testament, one will be able to receive legacies perhaps left to him. C. I. 945; C. G. 845. After repudiating an inheritance, one can still enter upon it as long as it has not been entered upon by others. C. I. 950; C. G. 790. The right of entering upon an inheritance ends in thirty years. C. I. 943; C. G. 789.

An inheritance is accepted expressly or tacitly. - Expressly, when by any juridical act, or even by private writing, someone assumes the right and name of heir. C. I. 934; C. G. 778; C. H. 999. Tacitly, when someone does something which necessarily demonstrates the will of entering upon the inheritance and of conducting himself as heir. C. I. 934, 938, 965; C. G. 778, 780, 796; C. H. 999, 1000. An inheritance once entered upon cannot afterward be repudiated, even though debt appears which previously was hidden. C. I. 942; C. G. 783; C. H. 997. Nevertheless against entry, as also against repudiation, restitution in integrum is given to those who have suffered fraud or fear. C. I. 942; C. G. 783; C. H. 997. - He to whom an inheritance has been deferred, if he dies before accepting expressly or tacitly, transmits to his own heirs the right of accepting. C. I. 939; C. G. 781. If someone renounces an inheritance to the damage of creditors, the judge can permit them to enter upon the inheritance in his name. C. H. 1001; C. G. 789. - C. B. 1943 ff.; C. He. 572 ff.; C. L. 2021 ff.

But it can be accepted purely, or under benefit of inventory. C. I. 929, 944; C. G. 774, 775, 784; C. A. 800 ff.; C. H. 998, 1003, 1023; C. L. 2018 ff., 1792; C. He. 580. Sometimes the making of an inventory is necessary by law, as in an inheritance deferred to a minor, C. I. 930; C. G. 461, 776, and in an inheritance devolved upon some community. C. I. 932. - An heir can use the benefit of inventory, notwithstanding any prohibition of the testator. C. I. 956; C. H. 1010; C. B. 1993 ff.

An inventory is a description of the movable things which the deceased left, C. I. 496; C. G. 600, but here in reality it is a description of all the goods of the deceased, or of the whole patrimony, C. A. 223; of the goods and debts of the inheritance; and all who know the patrimonial state of the deceased, if they are required by the competent authority, are bound to manifest it. C. He. 581. The benefits of inventory, which must be made at a certain time and with a certain solemnity, C. I. 955 ff.; C. G. 793 ff.; C. H. 1011 ff.; C. A. 800 ff., are three. - The first is that the heir is not bound to pay hereditary debts and legacies beyond the strength of the inheritance, and he can cede it to creditors and legatees in order to exempt himself from the burden of paying. - The second is that the proper goods of the heir are not confused with the goods of the inheritance, and the heir preserves against the inheritance the right of demanding payment of his own creditors. C. I. 968; C. G. 803. The third is that in the administration entrusted to him, he is bound only for grave fault. C. I. 970; C. G. 804; C. H. 1023; C. B. 1970 ff., 1975 ff., 1993 ff.; C. He. 589; C. L. 2044 ff.; L. 961.

The inventory does not benefit him who, in making it, has concealed something by bad fraud, C. I. 967; C. G. 801; who has not duly sold the immovable goods of the inheritance, C. I. 973; C. G. 806; who by his own authority has sold movable hereditary things within five years, C. I. 974, or at any time according to C. G. 805. Namely, a benefited heir is almost an administrator of the inheritance. C. I. 969; C. G. 803.

What is management of affairs? Management of affairs is a quasi-contract by which someone usefully undertakes the affairs of an absent and ignorant person to be managed for him. Inst. 1. 3. t. 28 de Obligat. quae quasi ex contr. nascuntur § 1. Quasi-contract. For although quasi-contract is often confused with an implicit or virtual contract, cf. 932, nevertheless it is distinguished from this. For by quasi-contract is understood a merely honest deed, from which, apart from an agreement, even implicit or tacit, with another who is entirely ignorant of the matter, an obligation arises. In Roman Law multiple quasi-contracts are listed: management of affairs, administration of a common thing or of a common inheritance, entry upon an inheritance, guardianship, payment of what is not owed.

Inst. l.c. More recent Laws list only two quasi-contracts: management of affairs and payment of what is not owed. For administration of a common thing, or of a common inheritance, the undertaking of guardianship, and entry upon an inheritance can easily be reduced to management of affairs. C. H. 1887; C. I. 1140; C. G. 1371. Of an absent and ignorant person. Otherwise, if the owner is present and knows the matter, although he is silent, not management of affairs but mandate is had. - He usefully undertakes the affairs to be managed for him. For not for the sake of his own profit, but for the utility of the owner, in his name, he undertakes the management of his business. Hence if someone redeemed another's thing from a thief for the owner, he demands the price of the same thing from the owner, if indeed he redeemed it for the owner, not if he bought it for himself.

What are the obligations and rights from communion of inheritance? - "The same right applies to him who is obligated to a coheir by the judgment for dividing the family property from these causes." Inst. l.c. § 4; C. B. 2032 ff., 2058 ff. To be obligated for the cause of dividing the family property is to be obligated to the division of the goods of the family. According to C. He. 602 ff., when the deceased leaves several heirs, a communion of rights and obligations arises among them, from the opened inheritance until its division; and they answer in solidum for the debts of succession, just as in common they are owners and dispose of the rights inhering in the succession, unless by law or contract the faculty of representation and administration is reserved to one of them. But any coheir can always seek division of the inheritance, unless by contract or law he is bound to remain in communion. Cf. here 1241 ff.

What are the obligations and rights from entry upon an inheritance? "The heir also, by the title of legacies, is not understood to be obligated properly from contract. For neither with the heir nor with the deceased can the legatee properly be said to have conducted any business; and nevertheless, because he is not obligated from wrongdoing, he is understood to owe as though from contract." Inst. l.c. § 5. By the very fact of entering upon an inheritance which contains legacies, the heir is held from the will of the deceased toward the legatees, and the legatees in turn are obligated toward the heir, so that they receive the legacy from no one other than the heir. Likewise he is held by the will of the deceased to execute his other commands. And, because the deceased and the heir are judged one and the same person, he is also bound to satisfy the hereditary creditors. - Cf. 1052.

Can a bridegroom rescind betrothals if a rich inheritance comes to him? The doctors most commonly deny it, because the bridegroom "has not been deceived in the condition of the bride, in whom no change has been made." A change has indeed been made in the bridegroom, but in a thing extrinsic to this contract. But several probably affirm it, "because in such a case there now comes a notable change of things." The same consequently would seem to have to be said if someone contracted betrothals with one woman and afterward marriage with another of an exceedingly better condition is offered to him. This "I would not dare," says St. Alphonsus 876, "altogether to condemn"; nevertheless he adds: "I would never dare to depart from the contrary opinion, nor ever to advise it."

11. Succession of a spouse with collaterals, with ascendants, with children. - 1. Titius dies and leaves Titia his wife and Caius his paternal uncle, and at the same time a patrimony of 12,000 lire. What is their legitime?

R. To the spouse pertain 8,000 lire, to the paternal uncle 4,000, namely two thirds to her, one third to him. C. I. 755; I. M. 1047.

2. Caius dies and leaves Caia his spouse and Sempronius his brother, and at the same time a patrimony of 24,000 lire. What is their legitime?

R. To the spouse pertains a third, to the brother two thirds; and therefore to the spouse there are owed 8,000 lire, to the brother 16,000 lire. C. I. 754; I. M. 1047.

3. Marcus dies and leaves a patrimony of 12,000 lire, and a spouse together with a brother and father. What is the legitime of the spouse?

R. A third, that is, 4,000 lire, are owed to the spouse; a third also, that is, 4,000 lire, are owed to the father; and a third likewise, or 4,000 lire, are owed to the brother. C. I. 740, 754; I. M. 1047.

4. Marcellus dies and leaves a spouse with a father and illegitimate son, legitimately recognized, and a patrimony of 12,000 lire. What is the legitime of each?

R. To the spouse there is owed a fourth, or 3,000 lire; to the father a third, or 4,000 lire, pertain to the father; the remainder, that is, quincunx, or 5,000 lire, pertain to the illegitimate son. C. I. 745; I. M. 1047.

5. Stanislaus, dying intestate, leaves seven legitimate sons and Stanislaa his wife. At the same time he leaves an inheritance of 16,000 lire. What is their legitime?

R. Since there are seven sons and, besides, the wife is present, she is to be computed with the sons; and therefore the whole inheritance will have to be divided into eight parts. But since the eighth part is 2,000 lire, Stanislaa, who has the right only of usufruct, obtains the usufruct over this part. But Stanislaa must compute in this part all things which came to her from matrimonial agreements and dotal profits. The remainder will have to be divided in equal portions among the seven brothers. - I. M. 1047, 5.

726. When someone does not dispose integrally of his things by donation or testament, the goods which remain pass to the heirs through legal succession. Legal succession therefore is the transmission of the goods of the deceased to one or several persons, according to the order defined by law. The general principles concerning successions are substantially the same among various nations, with a few exceptions, however, concerning the order to be followed among collaterals and ascendants, descendants being lacking. - Here, according to French law, we set forth: 1. who are the legal successors; 2. whether an option is given to them of accepting or repudiating the inheritance; 3. how the partition among the various successors is to be made.

¹ Carriere, de Justitia, II, n. 501-570; Marres, lib. I, n. 256-293; Planiol, III, n. 1698-2495.

730. 1. On the option given to heirs. Heirs can accept a succession either simply or under benefit of inventory, or repudiate it. It is indeed expedient to accept simply when there is moral certainty that the succession is not burdened by obligations beyond the resources of the inheritance: for thus many expenses are avoided. - But if the matter is doubtful, it is better to accept under benefit of inventory, because, although the expenses are greater, the heir nevertheless is not held to pay debts beyond the resources of the inheritance. - But it is useful to repudiate a succession when there is moral certainty that the inheritance is burdened by obligations which exceed the wealth, or when a donation of very great value, made previously, could be lost or diminished by the obligation of bringing it back to the common mass, as will be said below.

¹ Cod. civ., art. 774-810, Supplem., p. 129*; Planiol, III, n. 1953-2034.

731. 2. On the rights and obligations of one accepting. (A) He who accepts simply, whether explicitly, by assuming the name of heir in an authentic or private act, yet in such a way that it is clearly established that he has accepted the succession, - or implicitly, by eliciting an act which necessarily carries with it the will of accepting: (a) immediately acquires all the rights of the deceased and can dispose of them; (b) likewise takes upon himself all burdens, even beyond the resources of the inheritance, so that he is bound to pay debts not only from the goods of the succession, but also from his own.² - This obligation is irrevocable, according to that saying, "once an heir, always an heir," unless however in cases excepted by law, namely when acceptance was obtained through fraud, - or when the inheritance is diminished by more than half, because of the finding of a testament unknown at the time of acceptance (art. 783).

² Thus indeed from civil law, but not from natural law. - But civil law in this case does not oblige in conscience before the sentence of the judge, as was said above (n. 618-619), because it rests on a false presumption of fraud, which does not exist in the case; for we suppose that the heir acted honestly, and did not withdraw any goods of the succession.

732. (B) He who accepts under benefit of inventory must expressly declare this and have this declaration inscribed in the registry of the tribunal, "au greffe du tribunal de premiere instance dans l'arrondissement duquel la succession s'est ouverte" (art. 793); then: (a) he receives only administration of the goods, until the matters have been put in a clear state, and satisfaction has been made for the burdens; (b) he must take care that an inventory is completed; (c) this having been posited, he is not held to pay burdens beyond the resources of the inheritance, but can free himself from every obligation by leaving all the goods to the creditors and legatees; indeed he has the right of demanding payment of all things which are owed to him by the succession.

733. 3. On repudiation of succession. Since no one is an heir unless willing, someone can renounce a succession. But this renunciation is not presumed, but must be declared expressly in the same manner as acceptance under benefit of inventory. Now one renouncing (a) is judged never to have been an heir, and accordingly his portion accrues to co-heirs of the same order, or, if these are lacking, is devolved to the subsequent degree; (b) is freed from paying debts, but creditors who have been injured by this renunciation can obtain from the judge that they accept the succession in his place; in which case, the renunciation is invalidated only in favor of the creditors, and indeed for this end alone, that those things which are owed to them may be paid (art. 788); (c) can retain gifts and legacies made to him, provided they do not exceed the disposable part.

734. 1. State of the question. Sometimes, to forestall lawsuits, the partition of the inheritance is made by the ascendants themselves while they are living; then it must be made in the form of donation, or of testament (art. 1075-1080), while observing the rules concerning reservation and concerning succession. - If no partition has been made while the parents are living, after their death it must be instituted, unless the co-heirs agree about deferring it for some time, which must not exceed five years; after this time has elapsed, the agreement can be renewed; - but if there is no pact of this kind, no co-heir can be compelled to remain in indivision.

¹ Cod. civ., art. 815-892, Supplem., p. 133*; Planiol, III, n. 2170-2442.

735. 2. On collation (rapport) to be made before partition. So that relative equality may be preserved among the heirs, each must bring back to the common mass whatever he received from the deceased through donation, unless however the donor explicitly said that the things given, which otherwise do not exceed the disposable part, are not to be brought back, - or the law itself disposed otherwise.

Now the law exempts from collation: (a) expenses of education, namely those which are necessary for learning an art or commerce, or nuptial expenses, or customary gifts; but not expenses made for procuring some office or state of life (frais d'etablissement); (b) fruits and interest of the donated thing, which were received before the death of the donor; (c) immovable things which perished without the fault of the donee. - Testamentary legacies are exempt from collation unless the testator has disposed otherwise, or unless they exceed the disposable part.

736. 3. On rescission of partition. Partition once made can be rescinded (a) because of force and fraud; (b) when one party is injured, and this injury exceeds a fourth part of the portion which ought to have been attributed to him. - Moreover in the forum of conscience, any unjust injury whatever must be repaired.

737. 4. On the assurance of partition (garantie des lots). To preserve equality, it has been established that, if one of the heirs suffers eviction, totally or partially, of the goods which had fallen to him, or is disturbed in their enjoyment, the other heirs are bound to render him unharmed, provided: (a) the cause of eviction was prior to the partition, and not to be attributed to the fault of the heir whose interest is involved; (b) this eviction was not exempted from assurance by an explicit clause.

738. 5. On the proportion to be preserved in the payment of debts. The general principle, consonant with natural and civil law (art. 870), is that each heir must concur in the payment of debts, proportion being had to those things which he has received from the inheritance. Nevertheless, when one of the heirs has received some estate subject to mortgage, the creditors can compel him to pay the whole debt by which the estate is burdened; but he has recourse against the other heirs for recovering the part owed by them (art. 874).

273. Preliminary notions. Although hereditary succession, strictly speaking, is not a contract, because the consent of the one conferring and of the one accepting the inheritance does not exist at the same time, nevertheless it is rightly reduced to donation.³² For through it, and notably through a testament, ownership of an inheritance is transferred gratuitously to others. For the sake of clarity, certain preliminary notions must be explained:

Hereditary succession is called the right of succeeding to the goods and rights of a deceased person. It is twofold: the one legal or intestate, by which the right of succeeding arises from the disposition of law even without the expressed will of the deceased; the other testamentary, by which that right of succeeding arises from the last will expressly manifested by the deceased himself.

An inheritance³³ is the universality of goods pertaining to the deceased.

An heir is one who receives the goods of the deceased; and if he receives all his goods, he is called the universal heir (or heir to the whole estate); but if he receives only a part, he is an heir in part. Furthermore, there are distinguished: 1. an intestate heir, who succeeds to the goods of one who died without a testament; and a testamentary heir, who receives the goods of the deceased by force of a testament; 2. a necessary heir, who by force of positive law cannot be omitted from hereditary succession except in cases determined by law, and an arbitrary heir, who is freely called to the inheritance by the testator. In modern codes there are still other divisions of heirs,³⁴ but knowledge of those divisions is not so necessary for the confessor.

The legitimate part or portion³⁵ is that part of the inheritance which must be left to the necessary heirs³⁶ by statute of positive law.

The principal modes of acquiring an inheritance are two, namely, by testament, under which an inheritance pact can be included, by which someone declares his last will concerning his goods; and by intestate succession, if someone has died without a testament. We shall treat the latter at n. 280ff.

³² Thus also Noldin, De praeceptis, before n. 546; Tanquerey, De contractibus c. 2.

³³ In German, Erbschaft.

³⁴ E.g., prior heir, subsequent heir, substitute heir, forced heir (Vorerbe, Nacherbe, Ersatzerbe, Noterbe), etc.

³⁵ In German, Pflichtteil.

³⁶ In German, Noterben.

504. Legal succession, or succession ab intestato, is the transmission of the goods of the deceased to one or several persons according to the order defined by law. For when someone does not dispose integrally of his things by donation or testament, the goods which remain pass to natural heirs by way of succession confirmed or established by law. Yet this succession is reduced to donation and testament: for there is present in itself a presumed donation which the law supposes and recognizes.

505. Legal successors are called to the inheritance in a certain order. - First there must be distinguished regular heirs, who by the fact itself succeed to the person of the deceased and immediately acquire all his rights, provided they take upon themselves the burdens of succession; and irregular heirs, who are placed in possession of the goods by a judge.

Regulars, however, can succeed in a threefold way: by heads (par tête; hoofdsgemijze), by stocks (par souche; staaksgewijze), and by lines (par ligne; stamsgewijze). They succeed either by their own right, that is, on account of a personal degree of consanguinity, or by right of representation, because they have obtained the right of their deceased parent. Now there are five orders of regular heirs, so that there is no transition from one order to another unless the heirs of the prior order are entirely lacking.

A. As regular successors there are called to the succession:

1. Descendants of the deceased, namely: legitimate or legitimated children (a. 331-333), or recognized natural children (a. 756), or adoptive children (a. 350), and indeed by heads; then grandchildren, etc., but by stocks (a. 745).

By French and Belgian law, legitimate children divide the inheritance equally among themselves, because they succeed by heads. If one of them has died, his posterity are called to the inheritance by representation and succeed by stocks (a. 745). Recognized illegitimate children obtain only the part of the inheritance determined by law (a. 756-761), if legitimate heirs survive, as was said in n. 501. An adoptive child receives the part of a legitimate child (a. 350).

2. In default of descendants, the father and mother of the deceased are called together with his brothers and sisters, according to the proportion defined by law.

By French and Belgian law, 1/2 part yields to the parents, the other to the brothers and sisters; if only the father or mother survives, 1/4 part yields to this one, 3/4 to the brothers and sisters (a. 748-752).

3. In default of descendants and parents, the brothers and sisters of the deceased divide the whole inheritance among themselves in the way defined by law.

By French and Belgian law they succeed by heads if they are of the same bed; otherwise by lines, so that full siblings participate from both lines (a. 750 and 752).

4. If descendants, parents, and brothers and sisters are lacking, the succession devolves to ascendants, and indeed by lines, so that the nearer paternal ascendants divide one half part among themselves, but the nearer maternal ascendants divide the other among themselves (a. 746-749).

But if one of the two lines of ascendants has become extinct, 1/2 part is divided among ascendants, the other among collaterals of the other line (a. 753).

5. If descendants, brothers and sisters, and also ascendants are lacking, the inheritance passes to collaterals (a. 750 and 755) up to the degree defined by law.¹

¹ The orders are distinguished somewhat otherwise in German law (a. 1924 sq.), namely: 1. descendants of the deceased; - 2. parents, so that the descendants of the deceased parents or of one deceased parent hold their place; - 3. grandfathers and grandmothers, or likewise their descendants, to whom, however, the surviving spouse is preferred; - 4. great-grandfathers and great-grandmothers, in the same way as was said in 3; or in their default those nearest in kinship to the deceased; - 5. great-great-grandfathers and great-great-grandmothers, in the same way as was said in 4.

From the Belgian law of October 11, 1919, a. 47, blood relatives beyond the 4th degree do not succeed, unless they are called by representation; but representation is admitted in the direct line indefinitely, while in the collateral line it is admitted for the descendants both of the brothers and sisters of the deceased, and of his paternal or maternal uncle, paternal aunt or maternal aunt (Civil Code, a. 742 modified). - The French law of December 31, 1919, excludes collaterals beyond the sixth degree from succession, unless they are descendants of a brother or sister: then succession reaches as far as the 12th degree. The Dutch law of February 17, 1923, establishes almost the same. By Italian law collaterals are not admitted beyond the 10th degree.

B. There are two irregular successors:

1. The surviving spouse, provided he or she has not been judicially separated from bed from the other spouse, obtains the whole inheritance in default of the above-mentioned heirs; but if he or she does not obtain the whole inheritance, he or she acquires the usufruct of a certain portion of the goods (a. 767), as was said in n. 501.

By Italian law, the spouse, in default of children, has the right to a fourth or third part of the inheritance; if parents, ascendants, brothers and sisters also are lacking, to 2/3 parts, indeed to the whole if the relatives are more remote than the sixth degree (a. 754). By English law, the wife receives 1/3 part of the goods of the intestate husband, if he leaves descendants; otherwise as stated below.² By German law (a. 1924-1931), the surviving spouse in the first case receives only 1/4 part, in the second 1/2 of the inheritance and household goods; in default of ascendants, the whole.

² In the individual States of the United States of America the law is diverse. By English law, immovable and movable properties are distinguished. An immovable, if there is no offspring, is deferred to the nearest male heir; but if there is offspring, it is attributed to the eldest son or, if he has died, to his son; in default of all male offspring, dominion is assigned jointly to all the daughters. - Movables, in default of testament, are so divided that the third part falls to the widow, and both remaining parts to the children without distinction of sex. - If the wife herself dies without testament, her patrimony is attributed to the husband, or if he has died, to the progeny.

2. The State or public treasury (the fisc), which, in default of other heirs, natural or instituted, obtains all the goods (a. 768).

506. The following are excluded from the inheritance:

1. by reason of incapacity, and indeed by the fact itself, provided it exists at the moment when the succession begins: a) those not yet conceived; b) those who are born not viable; c) those who at the time when the succession began were already dead (a. 725);

2. by reason of unworthiness: a) those who were condemned for the perpetrated or attempted killing of the deceased; b) those who brought against the deceased a calumnious capital accusation, which was judicially declared as such; c) those of age who did not report to the judges the killing of the deceased known to them (not the killer), unless nevertheless they are excused from reporting as relatives or relatives by marriage of the killer (a. 727-728). Yet the children of the unworthy are not excluded, unless they succeed by representation (a. 730).

All the aforesaid are disinherited not by the fact itself, but only after the sentence of a judge.

507. Option of accepting and repudiating succession. - No one is bound to accept a succession, but he can repudiate it: for no one is an heir unless willing; whence no one succeeds except after he has accepted. But he can accept the succession either simply, or under benefit of inventory, or repudiate it (a. 774).

A. He who accepts simply, whether explicitly, by assuming the name of heir in an authentic or even private act, yet in such a way that it clearly stands that he accepted the succession; or implicitly, by placing an act which necessarily imports the will of accepting (a. 778-780):

1. immediately acquires all the rights of the deceased and can dispose of them (a. 777);

2. takes upon himself all burdens, even beyond the powers of the inheritance, so that he is bound to pay debts not only from the goods of the succession but also from his own. This last, however, does not seem to have force in the forum of conscience, at least before the sentence of a judge, which in the case rests upon a false presumption of fraud;

3. he accepts irrevocably, except in cases excepted by law, namely, when the acceptance was obtained by fraud, or when the inheritance is diminished by more than one half because of the discovery of a testament unknown at the time of acceptance (a. 783).

B. He who accepts under benefit of inventory must expressly declare this and have the declaration inscribed in the register of the tribunal (a. 793):

1. he receives only the administration of the goods, until the matter has been placed in a clear state and the burdens have been satisfied (a. 803);

2. he must take care that an inventory be made (a. 794); for making it three months are conceded, and besides 40 days for deliberating for acceptance or not (a. 795);

3. once the inventory has been made, he is not bound to pay burdens beyond the powers of the inheritance; indeed, he can free himself from every obligation by leaving all the goods to creditors and legatees, and he has the right of exacting payment of all things which are owed to him by the succession (a. 802).

C. He who repudiates the succession, which is not presumed but must be expressly declared in the same way as acceptance under benefit of inventory (a. 784):

1. is considered never to have been heir, whence his portion accrues to co-heirs of the same order, and, these lacking, devolves to the subsequent degree (a. 785-786);

2. is freed from paying debts, but creditors thereby injured can obtain from the judge that they accept the succession in his place; in which case the renunciation is invalidated only in favor of the creditors and for that sole end, that the things owed to them be paid (a. 788);

3. can retain gifts and legacies made to him, if they do not exceed the disposable part (a. 845).

Sometimes it is expedient to accept simply, when it is morally certain that the succession is not burdened beyond the powers of the inheritance: for thus many expenses are avoided. In doubt, it is better to accept under benefit of inventory. Finally, it is fitting to repudiate if it is morally certain that the inheritance is burdened with burdens which exceed the resources, or if a donation of great value previously made would have to be lost or notably diminished because it would have to be brought back to the common mass.

508. Partition of inheritance and collation of goods. Partition, in order to avoid lawsuits, can be made by the ascendants themselves in their life, under the form of donation or testament (a. 1075-1080), provided the rules of law concerning reservation and succession are observed. But if no partition has been made by the parents themselves, it must be instituted after their death, unless the co-heirs agree that it be deferred for a time; according to French law, this cannot exceed a five-year period, yet in such a way that, once this has elapsed, the agreement can be renewed. But lacking such an agreement, no co-heir can be compelled to remain in undivided possession (a. 815).

But in order that relative equality be preserved among heirs, sometimes it is prescribed by law that a collation of goods be made (a. 843 sq.: rapport; wederinbreng). It consists in this, that each one must bring back to the common mass of the inheritance whatever he himself has received from the deceased by donation or testament, unless, however, the donor explicitly said that these things were not to be brought back, and at the same time they do not exceed the disposable part (a. 844 and 846), or the law itself has otherwise disposed.

Therefore it is the heir or legatee himself who is bound to collation, not his son, not his father, not his spouse, unless these act by representation (a. 847-849). But the law exempts from collation: 1. expenses of education (a. 852), namely those necessary for learning an art or trade, or nuptial expenses or customary gifts; but not expenses made for procuring some office or state of life (frais d'etablissement, a. 851), or for paying debts (a. 851); - 2. fruits and interest of the donated thing, which were received before the death of the donor (a. 856); - 3. immovable things which perished without fault of the donee (a. 855).

509. Whether the obligation of collation which is imposed by civil law has force in conscience? - It is answered:

Since the heir is in the place of the testator, and in a certain way assumes his nature, it is certain that he is held to all the real debts to which the testator was held; for he who receives the real advantages ought also to undergo the real disadvantages, argument. leg. haeres in omne, ff. de acquirenda haereditate. but otherwise must be said of a personal right that the testator had to be paid; for this was extinguished together with his person.

It is conceded, however, by law that the Heir has a trimester period, within which time he can take possession of the inheritance or reject it, and within that time he ought not be molested by anyone: he is held, however, in the meantime to make an Inventory before a Notary, with the legatees and creditors present, if they wish to be present. So Bonacina above, with Sà, Reginald, and others cited. Yet if he omit to make it, not from fraud but from another just cause, he will be held to pay only as much as the inheritance can bear: otherwise if he negligently omit it fraudulently, he will be obliged even beyond the resources of the inheritance, as is had in leg. finali, C. de iureiurando.

The heir is held to pay not only debts, but also whatever legacies left by the testator; for by taking possession of the inheritance tacitly he is held to contract thus with the one testating; yet if the legacies were paid before death, although they were not cancelled in the testament, they are not to be paid leg. lucius, ff. de legatis. The mind of the testator, however, is to be examined, concerning whose intention, if it is established, the heir is held to observe it, leaving the ambiguity of the words; for all presumptions arising from words cease, once the will of the testator has been discovered.